This document provides an overview of absence from a legal perspective and strategies to minimize it. It discusses the causes and costs of absence, as well as measures to track absence. It outlines interventions for short and long-term absence. The document also examines culpable and innocent absenteeism, dismissal laws, leave policies, and an employer's right to medical information. It analyzes absence rates and provides strategies for employers to improve attendance, including wellness programs and accommodating work-life balance.

1. Absence from a legal perspective
and how to minimize it
by Toronto Training and HR
June 2014

2. CONTENTS
3-4 Introduction
5-6 Causes of absence
7-8 Measures
9-11 Costs of absence
12-13 Interventions
14-16 What will make employees turn up?
17-20 Strategies for employers
21-24 Culpable absenteeism
25-32 Innocent absenteeism
33-34 Dismissal and termination
35-36 The Human Rights Code
37-38 Workplace Safety and Insurance Act
39-42 Emergency leave and medical leave
43-44 The employer’s right to information
45-48 How much is too much?
49-50 Conclusion, summary and questions
Page 2

3. Page 3
Introduction

4. Page 4
Introduction to Toronto Training
and HR
Toronto Training and HR is a specialist training and
human resources consultancy headed by Timothy Holden
10 years in banking
15 years in training and human resources
Freelance practitioner since 2006
The core services provided by Toronto Training and HR
are:
Training event design
Training event delivery
HR support with an emphasis on reducing
costs, saving time plus improving employee
engagement and morale
Services for job seekers

5. Page 5
Causes of absence

6. Causes of
absence
• Manual workers
• Non-manual workers
Page 6

7. Page 7
Measures

8. Measures • ‘Lost time’ rate
• Frequency rate
• Bradford factor
Page 8

9. Page 9
Costs of absence

10. Costs of
absence
1 of 2
• Training
• Overtime
• Operational inefficiencies
caused by substitute
employees performing
unfamiliar jobs
• Safety issues arising from
substitute employees
performing unfamiliar jobs
• Reduced customer
satisfaction due to
increased employee
turnover

11. Costs of
absence
2 of 2
• Increased management
and administrative time in
managing the absence
• Reduced productivity
• Delayed production
schedules or missed
deadlines
• Increased costs for health
cover and sick leave
policies that provide
compensation for the
absent employee
Page 11

12. Page 12
Interventions

13. Interventions • Short-term absence
• Long-term absence
Page 13

14. Page 14
What will make employees
turn up?

15. What will
make
employees
turn up?
1 of 2
• Physical workplace
• Work and social
atmosphere
• Health, financial and family
benefits
• Vacation time and time off
• Employee communication
• Performance management
• Training and skills
development
• Community involvement
Page 15

16. What will
make
employees
turn up?
2 of 2
• Comfortable, well-lit and
healthy surroundings
• Comfortable, ergonomic,
and safe
tools/equipment/furniture
• Flexible hours
• Working from home
• Daycare facilities
• Recreation and leisure
facilities
Page 16

17. Page 17
Strategies for employers

18. Strategies for
employers
1 of 3
• Attendance management
programs
• Workplace wellness
initiatives
• Employee satisfaction
surveys
• Incentives to employees for
unused sick days and
meeting attendance targets
Page 18

19. Strategies for
employers
2 of 3
• Improve employee morale
by reducing stress,
rumours, negativity and
gossip
• Reduce employee stress by
improving the relationship
with the manager
• Provide management
training to improve people
skills
• Team building initiatives
Page 19

20. Strategies for
employers
3 of 3
• Work-life conflict
recognition
• Avoid discipline for
legitimate absences
• Allow employees to carry
over sick days
• Allow employees to
telecommute
Page 20

21. Page 21
Culpable absenteeism

22. Culpable
absenteeism
1 of 3
• Definition
KEY TYPES
• Lateness/leaving early
• Failure to notify
• Absence without leave
• Abuse of leave
Page 22

23. Culpable
absenteeism
2 of 3
FACTORS TO CONSIDER
• Is there a clear policy
relating to culpable
absenteeism?
• Has this policy been
communicated clearly to
employees?
• Has this policy been
consistently and uniformly
applied in the past?
• How serious is the incident in
question?
Page 23

24. Culpable
absenteeism
3 of 3
FACTORS TO CONSIDER
(CONT.)
• What is the impact of the
absence on the employer’s
production?
• Are there any relevant
personal factors?
• What does the employee’s
past disciplinary record look
like?
• What is the past practice
with respect to similar
instances?

25. Page 25
Innocent absenteeism

26. Innocent
absenteeism
1 of 7
• Definition
Page 26

27. Innocent
absenteeism
2 of 7
FACTORS TO BE
CONSIDERED
• Attendance record
• Prognosis for future
attendance
• Counselling
• Benefits status
• Human rights
considerations
• Employment Standards
Considerations
Page 27

28. Innocent
absenteeism
3 of 7
FACTORS TO BE CONSIDERED
(CONT.)
• Workplace Safety and
Insurance Act considerations
Page 28

29. Innocent
absenteeism
4 of 7
QUESTIONS TO ASK
• Is the level of absenteeism
unacceptably high
particularly when viewed in
terms of its pattern?
• Have you acquired all the
information you can
regarding the likelihood of
improvement in the future?
Page 29

30. Innocent
absenteeism
5 of 7
QUESTIONS TO ASK (CONT.)
• Have you counselled the
employee about the
consequences of failure to
attend regularly, and kept
records of having done so?
• Will termination interfere
with any contractual right the
employee may have to
disability benefits?
Page 30

31. Innocent
absenteeism
6 of 7
QUESTIONS TO ASK (CONT.)
• Is the absenteeism – or any
part of it– attributable to a
disability such that the
Human Rights Code may
apply?
• Is the absenteeism – or any
part of it – attributable to
emergency leave or family
medical leave under the
Employment Standards Act,
2000?
Page 31

32. Innocent
absenteeism
7 of 7
QUESTIONS TO ASK (CONT.)
• In the case of absences due
to work-related injuries or
illnesses, will the termination
interfere with the employer’s
re-employment obligations
under the WS and I Act?
• Have you complied with your
obligation under the ESA
2000 to provide statutory
notice (or termination pay)
and severance pay to the
employee?

33. Page 33
Dismissal and termination

34. Dismissal and
termination
• Non-unionized employees
• Employees covered by
collective agreements
• What judges consider with
culpable attendance-related
misconduct
Page 34

35. Page 35
The Human Rights Code

36. The Human
Rights Code
• The “bona fide
occupational requirement”
test
• Disability
• Duty to accommodate
• Record-keeping and
documentation
• Questions to ask
Page 36

37. Page 37
Workplace Safety and
Insurance Act

38. Workplace
Safety and
Insurance Act
• Schedule 1 employers
• Schedule 2 employers
• Return to work obligations
for the employer
• Return to work obligations
for the employee
• The functional abilities form
and the independent
medical examination
• Re-employment
• Termination
Page 38

39. Page 39
Emergency leave and
medical leave

40. Emergency
leave and
medical leave
1 of 3
PERSONAL EMERGENCY
LEAVE
• Who is covered
• The basic statutory
entitlement
• Notification
• Collective agreements and
employment contracts
• Reprisals
• What employers can do
Page 40

41. Emergency
leave and
medical leave
2 of 3
GOVERNMENT DECLARED
EMERGENCIES
• Emergency order
• Quarantine order
• Assistance to family
members
• Maximum number of days
FAMILY MEDICAL LEAVE
Page 41

42. Emergency
leave and
medical leave
3 of 3
FAMILY MEDICAL LEAVE
• Employment Standards Act
2000
• Who is family?
• One week blocks
• Written notice
• Doctor’s certificate
Page 42

43. Page 43
The employer’s right to
information

44. The
employer’s
right to
information
• Context
• Non-medical explanations
• Medical explanations
• Surveillance
• Duty to accommodate
• Consent
• Confidentiality
• Costs
Page 44

45. Page 45
How much is too much?

46. How much is
too much?
1 of 3
• Cost to the Canadian
economy
• Average
• HIGHEST-health care and
social assistance
• LOWEST-professional,
scientific and technical
services
Page 46

47. How much is
too much?
2 of 3
• Public v private
• Unionized v non-unionized
• Young v older
• Large employers v small
employers
• Per province
Page 47

48. How much is
too much?
3 of 3
• 351552 paid absence days
in TDSB
• Per employee?
Page 48

49. Page 49
Conclusion, summary and
questions

50. Page 50
Conclusion, summary and
questions
Conclusion
Summary
Videos
Questions